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Common standards on return

European Commission - MEMO/05/288   01/09/2005

Other available languages: FR

MEMO/05/288

Brussels, 1 September 2005

Common standards on return

Return in the EU

Today the Commission adopted a proposal for a Directive on common standards on return. The term “return” in the context of this proposal solely concerns persons staying illegally in the EU. These persons do not, or no longer, fulfil the conditions for entry into, presence in, or residence in the territories of the Member States either because they entered illegally, overstayed their visa or residence permit, or because their asylum claim has been finally rejected. These persons have no legal status enabling them to stay and need to be obliged to leave the territory of the Member States. It may be that illegal migrants or rejected asylum seekers agree to return voluntarily. This clearly should be encouraged. However, Member States need to be able to compel third country nationals’ to respect their obligation to return, if circumstances require.

Currently, Member States’ legislation on returning illegally staying third country nationals differs widely. Both the terminology used in national legislation and the substantive provisions applying to return, removal, use of coercive force, temporary custody and re-entry are different from Member State to Member State. This leads to difficulties in situations involving more than one Member State (for example: a person found to be staying illegally in Member State A is apprehended in Member state B – Should that person be permitted a second opportunity to challenge his return in MS B including legal remedies, with the inherent risk of “legal remedies shopping” ?) This situation also has a distorting effect on the repartition/movement of illegal immigrants (who may prefer to move to those MS which have the most relaxed rules) within the EU and it sends a bad signal to the outside world in terms of the EU's willingness to combat illegal immigration effectively. In the absence of basic common rules and terminology in this field, further harmonisation, based on mutual trust of MS into their national systems, will be difficult, if not impossible.

Quantifying the phenomenon

Reliable estimation for the number of illegal immigrants who have entered or are present illegally on the territory of the Member States is difficult to make. There are, however, a number of indicators which can help us understand and draw conclusions regarding illegal immigration into the EU. Data compiled by the Commission services in the preparation of the proposal for a European Return Fund show that, in 2004 in the EU(25), 650.000 return decisions had been issued, and that 164 000 forced returns and 48.000 voluntary returns took place. National return trends are varied, across Europe. Increased migration pressure during the next decades seems very likely in view of the economic and political situation in many countries of origin and with regard to demographic forecasts. Illegal migratory movements are likely to continue at a significant rate as long as ‘push’ factors in third countries and ‘pull’ factors in the EU remain important.

Organised criminal networks have a direct interest in illegal migration. Smuggling and trafficking in human beings has become a prominent field of their activity throughout Europe. A common return policy should be an integral part of the fight against illegal immigration. The credibility of the EU migration policy and the rule of law are at stake when illegal residents succeed in staying in the EU despite being subject to an issued return decision. Such a situation would further impede the development of a necessary, well managed immigration policy accepted by the wider public in the Member States. It could also lead to an increase in xenophobia and could be used as an argument by extremist anti-migration movements in Member States.

Policy and legal context

In its Communication on a Common Policy on Illegal Immigration of 15 November 2001 the Commission pointed out that return policy is an integral and crucial part of the fight against illegal immigration. Return policy needs to be based on three elements: common principles, common standards and common measures. The Green Paper on a Community Return Policy of 10 April 2002 elaborated in more detail on the issue of return as an integral part of a comprehensive Community Immigration and Asylum Policy. It highlighted the need for approximation and improved co-operation on return among Member States and put on the table a number of possible elements for a future legislative proposal on common standards in order to trigger a broad debate among relevant stakeholders.

The ensuing Commission Communication on a Community Return Policy on Illegal Residents of 14 October 2002 took into account the results of this public consultation process and sketched a concrete programme for further action, putting particular emphasis on a holistic approach. It made clear that “...for Community action for return to be fully effective, it must fit smoothly into a genuine management of migration issues, requiring crystal-clear consolidation of legal immigration channels and of the situation of legal immigrants, an effective and generous asylum system based on rapid procedures offering access to true protection for those needing it and enhanced dialogue with third countries which will increasingly be invited to be partners in dealing with migration.” Based on this Communication, the Council adopted its Return Action Programme of 28 November 2002 in which it called for improved operational co-operation among Member States, intensified co-operation with third countries and the establishment of common standards with the aim of facilitating operational return.

Finally “The Hague Programme”, adopted by the 4/5 November 2004 Brussels European Council, resumed this issue and expressly asked for the establishment of common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity. It called for the submission of a Commission proposal in 2005.

Content of the Proposal

The objective of this proposal is to provide for clear, transparent and fair common rules concerning return, removal, use of coercive measures, temporary custody and re-entry while taking into full account the respect for human rights and fundamental freedoms of the persons concerned. To this end, the present proposal, inter alia,

• establishes the rule that illegal stay should be ended through a fair and transparent procedure;

• promotes the principle of voluntary return by establishing a general rule that a "period for departure" should normally be granted;

• establishes a harmonised two-step procedure which involves a return decision as a first step and, if necessary, the issuing of a removal order as a second step, thus aligning to a certain extent the currently divergent Member States systems;

• addresses the situation of illegally staying persons who cannot be removed;

• provides for a minimum set of procedural safeguards;

• limits the use of coercive measures, binds it to the principle of proportionality and establishes minimum safeguards for the conduct of forced return;

• gives a European dimension to the effects of national return measures by establishing a re-entry ban valid throughout the EU;

• rewards good compliance (including an option to withdraw any re-entry ban), and penalises non-compliance (including an option to extend any re-entry ban);

• limits the use of temporary custody (maximum period of 6 months), binds it to the principle of proportionality and establishes minimum safeguards for the conduct of it;

• addresses situations where a third-country national who is the subject of a removal order or return decision issued by a Member State is apprehended in the territory of another Member State.

Decision-making in Council and Parliament

This legislative proposal is based on Article 63 (3) (b) of the EC Treaty and, as a consequence, will be subject to the co-decision procedure.

How will this Directive interact with the proposed Return Fund ?

Both the Return Fund and the proposed Directive will be essential parts of a comprehensive EU return policy. The proposed Directive will complement the Border Fund insofar as it will establish a common interpretation and common standards amongst Member States of who can be returned and how to proceed in implementing return measures.

Technical details/update on the financial instrument:

The Commission has launched the preparatory phase of a European Return Fund. The call for proposals concerning the Preparatory Actions 2005 (15 Mio €) is open since 24 August 2005 (deadline 31 October 2005). The preparatory actions aim at supporting the efforts made by Member States to improve the management of return in all its dimensions by co-financing specific actions such as voluntary return programmes, plans for enforced return as well as the organisation and execution of joint flights for removal. The Preparatory Actions 2006 (also 15 Mio €) will follow.

Simultaneously the proposal for a Decision establishing the European Return Fund for the period 2008-2013 as part of the General Programme “Solidarity and Management of Migration Flows” (presented by the Commission to the Council in April 2005), have just started to be discussed in the Council. A primary objective of this instrument should be the promotion of integrated return management. The financial reference amount for the implementation of the Fund from 2008 to 2013 shall be 759 million €.


STATISTICS ON REMOVALS AND RETURN DECISIONS



1. Sources of data

The Commission services use currently two different sets of data concerning return:

1.1. The CIREFI data collection (carried out by Eurostat in cooperation with MS)

The CIREFI Definition of removed aliens is the following:
"Persons other than those entitled under Community law who, having entered the country illegally, having resided in the country illegally or for other reasons, are returned to a third country."

The purpose of this category is in principle to record figures for the number of third country nationals who are actually removed to a third country. Removals to another Member State (for example, Dublin Convention cases) are not to be included. Figures should relate to those who are expelled having been found to be liable for removal. The definition does, however, include those removed 'for other reasons' in recognition that expulsion may take place for reasons (criminal activity, security reasons) not directly related to a person's immigration status. Figures for this category may include voluntary departure where such a departure takes place in order to comply with a formal order to leave. Statistics for removals may, where possible, be broken down according to whether removal took place by land, sea or air.

1.2. The ad hoc request to MS undertaken during the preparation of the proposal for a Return Fund

The Commission services asked early Member States early in 2005 to provide data on the number of voluntary and enforced returns, plus the number of return decisions. This data was included in the Commission staff working paper[1] accompanying the proposal for the establishment of a framework programme on Solidarity and Management of Migration Flows[2] (which includes a proposal for a Return Fund).

In some cases data was not provided by Member States and the Commission had to made estimates. As no definitions exist yet of ‘voluntary return’, ‘enforced return’ or ‘return decision’ in Community law, data was collected on the basis of existing information and data collections. No statistical validation was done to this data, so it must be taken with caution.


2. Data on removals

CIREFI data for EU 25 shows an increase from 242,237 in 2002 to 245,579 in 2003. Thereafter there is a substantial decrease as there were 199,949 removed aliens in 2004.

Data from the ad hoc request on removals is slightly different. Adding up the figures for voluntary and forced return, the figures for 2002 and 2003 are 5-10 % lower than those in the CIREFI data collection, whereas figures for 2004 are 5% higher than those in the CIREFI data collection.

In any case the trend is upwards between 2002 and 2003 and downwards between 2003 and 2004. For the CIREFI data collection the annual average 2002-2004 is 229255, whereas for the ad hoc request it is 220792. Therefore, taking into account figures from both data collections, the annual average would be close to 225000.


2002
2003
2004
CIREFI
242237
245579
199949
Ad hoc request
220419
230038
211920



3. Data on return decisions

Data on return decisions is only available in the ad hoc request:


2002
2003
2004
Ad hoc request
668497
667832
649810



The figures remain rather stable, with a slight decrease of less than 3% between 2003 and 2004.


4. Comparison between data on removals and data on return decisions

Using an annual average of 225000 removals for the period 2002-2004 and an annual average of 662046 return decisions for the same period, it is easy to see that the ratio between removals and return decisions is close to 1/3.

Therefore, it can be concluded that only one third of the return decisions are effectively implemented and result in removal.



5. Situation once the statistical regulation will be in force

Article 7 of the proposed Regulation on Community statistics on migration and international protection provides for the following:

Article 7
Statistics on returns

1. Member States shall supply to the Commission (Eurostat) statistics relating to the number of third-country nationals who go back to their countries of origin, transit, or another third country, whether voluntarily or enforced, following an administrative or judicial decision or act imposing an obligation to return, disaggregated by age and sex, and by the citizenship of the persons returned.

2. The statistics referred to in paragraph 1 shall relate to reference periods of one calendar year and shall be supplied to the Commission (Eurostat) within three months of the end of the reference year. The first reference year shall be 2006.
DATA FROM THE AD HOC REQUEST

The number of return decisions


2002
2003
2004
Totals
Austria
23.750
22.641
15.511
61.902
Belgium
53.215
52.169
50.000
155.384
Denmark
8.000
8.000
8.000
24.000
Finland
 3.526
3.456
3.800
10.782
France
49.124
55.938
50.000
155.062
Germany
143.000
143.000
143.000
429.000
Greece
29.602
29.542
29.776
88.920
Ireland
 2.465
2.425
2.866
7.756
Italy
94.995
70.147
70.320
235.462
Luxemburg
 1.000
1.000
1.000
3.000
Netherlands
 62.000
62.000
62.000
186.000
Portugal
 2.000
2.000
2.000
6.000
Spain
56.130
69.773
66.419
192.322
Sweden
18.497
22.656
27.876
69.029
United Kingdom
70.000
70.000
70.000
210.000
Cyprus
1.300
1.300
1.400
4.000
Czech Republic
25.496
29.366
25.317
80.179
Estonia
1.000
1.000
1.000
3.000
Hungary
7.233
7.878
6.911
22.022
Latvia
362
709
286
1.357
Lithuania
556
823
775
1.357
Malta
1.949
970
1.319
4.238
Poland
5.796
5.531
4.275
15.062
Slovenia
6.256
3.917
3.110
13.283
Slovak Republic
 1.245
1.591
2.849
5.685
EU-25
668.497.494
667.832
649.810
1.986.139

Source: Member States.

  1. Where no data were provided by the Member States, the Commission has made estimates. Some data may have been amended to take into account other statistical information (for instance the number of persons receiving a negative asylum decision).
  2. To date no definition of a return decision exists in Community law. Data have been collected on the basis of existing information and data collections.

Voluntary return and enforced return


Voluntary Return
Forced Return
2002
2003
2004
Total
2002
2003
2004
Total

Austria
785
1.023
1.162
2.970
11.592
11.171
9.943
32.706
Belgium
3.321
2.814
3.286
9.421
11.727
11.262
8.497
31.486
Denmark
2.530
2.014
2.130
6.674
390
408
244
1.042
Finland
 700
700
600
2000
1.623
1.910
1.853
5.386
France
761
947
854
2.562
10.067
11.692
12.000
33.759
Germany
11.774
11.646
9.961
33.381
29.036
26.487
21.614
77.137
Greece
 0
0
0
0
11.628
14.518
14.884
41.030
Ireland
 506
762
611
1.879
 521
590
599
1.710
Italy
2.641
8.126
7.678
18.445
25.226
19.729
17.200
62.155
Luxemburg
190
610
325
1.125
44
98
56
198
Netherlands
2.068
2.912
3.714
8.694
19.002
19.468
15.304
53.774
Portugal
171
115
226
512
524
562
448
1.534
Spain
798
604
992
2.394
26.434
27.788
27.600
81.822
Sweden
6.756
8.815
10.196
25.767
1.592
2.258
2.601
5531
United Kingdom
 895
1.755
1.325
3.975
14.205
19.630
16.918
50.753
Cyprus
0
0
0
0
2.497
3.115
2.801
8.413
Czech Republic
423
231
327
981
811
386
110
1.307
Estonia
 378
280
235
893
26
68
61
155
Hungary
4.336
3.225
3.346
10.907
1.759
1.604
865
4.228
Latvia
20
20
20
60
150
150
150
450
Lithuania
0
0
0
0
312
376
206
894
Malta
1.254
931
704
2.889
223
200
200
623
Poland
479
2
45
526
4.303
4.643
4.473
13.419
Slovenia
1.856
608
461
2.925
2.840
3.114
2.246
8.200
Slovak Republic
 40
104
148
292
1205
1487
2701
5393

EU-25
42.682
48.244
48.346
139.272
177.737
181.794
163.574
523.105


Source: Member States
Where no data were provided by the Member States, the Commission has made estimates. Some data may have been amended to take into account other statistical information (for instance the number of persons receiving a negative asylum decision).
N.B. To date no definition of ‘voluntary return’ and ‘enforced return’ exists in Community law. Data have been collected on the basis of existing information and data collections.

DATA FROM THE CIREFI DATA COLLECTION

Total number of removed aliens during the period 2002 - 2004
 
 
 
 

[Graphic in PDF & Word format]

[Graphic in PDF & Word format]

 
 
 
 
 
 
 
 
 
 
Absolute number
Indexed (2004 = 100)
 
2002
2003
2004
2002
2003
2004
Belgium
10.352
9.996
9.647
107
104
100
Denmark
1.627
3.100
3.093
53
100
100
Germany
31.311
30.176
26.807
117
113
100
Greece
45.299
40.930
35.942
126
114
100
Spain
26.257
26.757
27.364
96
98
100
France
10.015
11.692
15.672
64
75
100
Ireland
:
:
:
:
:
:
Italy
33.289
31.013
27.402
121
113
100
Luxembourg
:
:
41
:
:
100
Netherlands
22.579
23.206
5.564
406
417
100
Austria
9.858
11.070
9.408
105
118
100
Portugal
1.991
2.798
3.507
57
80
100
Finland
2.223
2.773
2.775
80
100
100
Sweden
6.854
7.355
11.714
59
63
100
United Kingdom
15.100
21.380
:
:
:
:
 
 
 
 
 
 
 
EU15
216.755
222.246
178.936
 
 
 
 
 
 
 
 
 
 
Czech Republic
4.873
2.602
1.528
319
170
100
Estonia
255
171
101
252
169
100
Cyprus
2.932
3.307
2.982
98
111
100
Latvia
197
375
234
84
160
100
Lithuania
487
846
306
159
276
100
Hungary
3.602
4.804
3.980
91
121
100
Malta
952
847
680
140
125
100
Poland
6.847
5.879
6.042
113
97
100
Slovenia
4.268
3.209
2.632
162
122
100
Slovakia
1.069
1.293
2.528
42
51
100
 
 
 
 
 
 
 
EU10
25.482
23.333
21.013
 
 
 
 
 
 
 
 
 
 
EU25
242.237
245.579
199.949
 
 
 
 
 
 
 
 
 
 
Bulgaria
722
814
1.271
57
64
100
Romania
333
500
650
51
77
100
 
 
 
 
 
 
100
Iceland
9
18
18
50
100
100
Norway
7.849
8.672
5.439
144
159
100
 
 
 
 
 
 
 
Footnotes
 
 
 
 
 
 
Missing data for the period 2003 - 2004
 
 
 
 
M5: Ireland, Luxembourg, The Netherlands, United Kingdom
 
 

Removed aliens by the ten main groups of citizens, 2002 - 2004
 
 
 
 
 
 
 
 
Removed aliens in EU25
 
2002
2003
2004
Albania
48.043
40.792
35.074
Romania
17.762
27.158
25.899
Morocco
26.012
23.317
20.466
Unknown
16.515
22.512
 
Ukraine
11.090
10.829
12.303
Yugoslavia, Federal Rep. of *)
11.925
11.087
 
Turkey
11.441
11.418
8.597
Bulgaria
11.177
10.190
8.369
Poland
8.830
9.491
 
Russian Federation
 
6.490
6.588
Serbia and Montenegro
 
 
5.961
Algeria
5.608
 
5.460
Moldova, Republic of
 
 
4.258
 
 
 
 
Others
73.834
72.295
66.974
 
 
 
 
Total
242.237
245.579
199.949
 
 
 
 
TOP 10 total
168.403
173.284
132.975
% of total
69,52
70,56
66,50

 
 
 
*) Since February 2003 name changed to "Serbia and Montenegro"
 
 
 

 
 
 
 
 
 
 
Footnotes
 
 
 
Missing data for the period 2003 - 2004
 
 
M5: Ireland, Luxembourg, The Netherlands, United Kingdom


[1] SEC (2005) 435

[2] COM (2005) 123


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